9.  The first and third applicants were born in 1967 and the second applicant was born in 1995.
10.  The first applicant and the third applicant are two women living in a stable relationship. The second applicant is the third applicant’s son and was born outside marriage. His father has recognised paternity and his mother has sole custody of him. The applicants have been living in the same household since the second applicant was about five years old and the first and third applicants care for him jointly.
11.  On 17 February 2005 the first applicant and the second applicant, represented by his mother, concluded an agreement whereby the second applicant would be adopted by the first applicant. The applicants’ intention was to create a legal relationship between the first and second applicants corresponding to the bond between them, without severing the relationship with the child’s mother, the third applicant.
12.  The applicants, aware that the wording of Article 182 § 2 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) could be understood to exclude the adoption of the child of one partner in a same-sex couple by the other partner without the relationship with the biological parent being severed, requested the Constitutional Court to declare that provision unconstitutional as discriminating against them on account of their sexual orientation. In the case of heterosexual couples, Article 182 § 2 of the Civil Code allowed for second-parent adoption, that is to say, the adoption by one partner of the child of the other partner, without the latter’s legal relationship with the child being affected.
13.  On 14 June 2005 the Constitutional Court rejected the request as inadmissible under Article 140 of the Federal Constitution. It noted that the competent District Court, in deciding whether to approve the adoption agreement, would have to examine the question whether or not Article 182 § 2 of the Civil Code allowed second-parent adoption in the case of a same-sex couple. Should the District Court refuse to approve the adoption agreement, the applicants remained free to submit their arguments regarding the alleged unconstitutionality of that provision to the appellate courts, which in turn could bring the issue before the Constitutional Court if they shared the applicants’ view.
14.  Subsequently, on 26 September 2005, the applicants requested the District Court to approve the adoption agreement, to the effect that both the first and the third applicants would be the second applicant’s parents. In their submissions they explained that the first and second applicants had developed close emotional ties and that the second applicant benefited from living in a household with two caring adults. Their aim was to obtain legal recognition of their de facto family unit. The first applicant would thus replace the second applicant’s father. They noted that the second applicant’s father had not consented to the adoption, without giving any reasons for his position. Furthermore, they alleged that he had displayed the utmost antagonism towards the family and that the court should therefore override his refusal to consent under Article 181 § 3 of the Civil Code, as the adoption was in the best interests of the second applicant. In support of their submissions, the applicants attached a report from the Youth Welfare Office which confirmed that the first and third applicants shared the day-to-day tasks involved in caring for the second applicant and the overall responsibility for his upbringing, and which concluded, while expressing doubts as to the legal position, that the award of joint custody would be desirable.
15.  On 10 October 2005 the District Court refused to approve the adoption agreement, holding that Article 182 § 2 of the Civil Code did not provide for any form of adoption producing the effect desired by the applicants. Its reasoning reads as follows:
“Ms ..., the third applicant, has sole custody of her minor son ..., who was born outside marriage. [She] shares a home in ... with her partner ... (the first applicant) and with ... (the second applicant).
An application to the courts made jointly on 12 October 2001 by the child’s mother and her partner for partial transfer of custody of [the child] to the mother’s partner, so that the two women could exercise joint custody, was dismissed with final effect.
Under the terms of the adoption agreement of 17 February 2005 for which approval is now sought, the first applicant, as the partner of [the child’s] mother, agreed to adopt the child.
The applicants seek court approval of the adoption such that the relationship with the biological father and his relatives under family law would cease to exist while the relationship with the biological mother would remain fully intact. They request the courts to override the refusal of consent by the child’s father.
The application, which is aimed de facto at securing joint custody for the biological mother and the adoptive mother – who lives in a same-sex relationship with her – fails on legal grounds.
Article 179 of the Civil Code provides for adoption either by one person or by a married couple. Only under certain strict conditions may a married person adopt a child on his or her own. Under the second sentence of Article 182 § 2 of the Civil Code, the legal relationship in family law ­– above and beyond the legal kinship itself – ceases only in respect of the biological father (the biological mother) and his (her) relatives, if the child is adopted only by a man (or a woman). In so far as the relationship with the other parent remains intact subsequently (that is, after the adoption), the court declares it to have been severed in respect of the parent concerned, subject to his or her consent.
Article 182 of the Civil Code was last amended in 1960 (Federal Gazette 58/1960). On the basis of the unambiguous wording of this provision and the undoubted intentions of the legislature at that time it must be assumed that, in the event of adoption by one person, the legal relationship with the biological parent of the same sex as the adoptive parent ceases to exist, while the relationship with the parent of the opposite sex remains intact (see also Schlemmer in Schwimann, ABGB ... I § 182, point 3). Only in this scenario does the law allow the courts to declare the latter relationship – which is unaffected by the adoption per se – to have been severed.
The arrangement sought by the applicants, whereby [the child] would be adopted by a woman and the relationship with his biological father, but not with his biological mother, would cease, is therefore incompatible with the law. In the court’s view, the interpretation of this legislative provision in conformity with the Constitution – which, needless to say, is required – does nothing to alter this finding.
It is correct to state that, according to the settled case-law of the European Court of Human Rights, issues concerning sexual orientation fall within the scope of protection of the right to private and family life (Article 8 [of the Convention]). It is also true that, according to the Court’s case-law, discrimination on the basis of sexual orientation is fundamentally incompatible with Articles 8 and 14 of the Convention. It should be noted, however, that the European Court has also consistently ruled that the Council of Europe member States are to be allowed a margin of appreciation in this regard, which is correspondingly broader the less common ground there is amongst member States’ legal orders. In paragraph 41 of its judgment in Fretté v. France (no. 36515/97, ECHR 2002-I), the European Court expressly stated that, in the sphere of the right of homosexuals to adopt, member States had to be afforded a wide margin of appreciation as the issues concerned were subject to societal change and in a state of transition; however, this margin of appreciation was not to be interpreted as giving States carte blanche to exercise arbitrary power.
The issue whether a member State provides the possibility for two persons of the same sex to establish a legal relationship with a child on an equal footing is therefore a matter for the State itself to decide, subject to the limits laid down in Article 8 § 2 of the Convention. In the view of this court no such possibility exists under Austrian law as it currently stands, even when the law is interpreted, as it is required to be, in conformity with the Constitution. The arrangement sought by the applicants would require an amendment to the legislation; it could not be authorised by means of an ordinary court decision interpreting Article 182 of the Civil Code in a manner running counter to the unambiguous wording of that provision.
For these reasons the court dismisses the application for approval of the adoption agreement.”
16.  The applicants appealed. Referring to Articles 8 and 14 of the Convention, they argued that Article 182 § 2 of the Civil Code was discriminatory in that it led to an unjustified distinction between different-sex and same-sex couples. So-called second-parent adoption was possible for married or unmarried heterosexual couples but not for same-sex couples. The present case had to be distinguished from Fretté, cited above, which had dealt with adoption by a single homosexual. By contrast, the present case concerned a difference in treatment between different-sex and same-sex couples.
17.  Having regard to the Court’s judgment in Karner v. Austria (no. 40016/98, ECHR 2003‑IX), the difference in treatment between unmarried heterosexual couples and same-sex couples was particularly problematic. Only a few European States allowed second-parent adoption in same-sex couples; the majority of States reserved second-parent adoption to married couples, and there was a consensus that unmarried different-sex couples and same-sex couples should not be treated differently. The difference complained of did not serve a legitimate aim: in particular, it was not necessary in order to protect the child’s interests. There was research to show that children developed just as well in families with homosexual parents as in families with heterosexual parents. What was important was not the parents’ sexual orientation but their ability to provide a stable and caring family. The applicants requested the appellate court to quash the District Court’s decision and to grant their request of 26 September 2005 or, alternatively, to refer the case back to the District Court for a fresh decision.
18.  The Regional Court, without holding a hearing, dismissed the applicants’ appeal on 21 February 2006. In its decision it described a number of related sets of proceedings (concerning visiting rights for the second applicant’s father as well as his maintenance obligations, and the proceedings in which the first and third applicants had tried unsuccessfully to obtain joint custody of the second applicant). The Regional Court observed that it had doubts as to whether the third applicant could represent her son in the proceedings, as there was a potential conflict of interests. It went on to state as follows:
“Further examination of this issue is, however, objectively unnecessary, as, in the view of this court – as set out below – approval of the adoption agreement should in any event be refused in this case without the need for further investigation, and was indeed refused by the first-instance court, with the result that the effective representation of the child in the proceedings is not at issue.
As far back as the decision on the application for a partial transfer of custody of [the child] to [the mother’s partner], the courts reviewing the case observed that, while Austrian family law contained no legal definition of the term ‘parents’, it was nevertheless abundantly clear from the provisions of Austrian family law as a whole that the legislature intended that a parental couple should consist, as a matter of principle, of two persons of opposite sex. The legislation therefore provided first and foremost for the biological parents to have custody, or the biological mother in the case of a child born outside marriage. Only where this was not possible did the law provide for other persons to be awarded custody of a child. If the biological parents (father and mother) were present, it was unnecessary to award custody to another person, even if, from a purely factual viewpoint, that person had a close relationship with the child (compare OGH, 7 Ob 144/02 f). The courts stressed that no discrimination against persons in same-sex partnerships could be inferred from this legal stance, but that the provisions of family law were based, in line with the biological reality, on the presence of a couple made up of parents of opposite gender.
In this court’s view, these considerations also apply to the issue under examination here, namely the approval of the adoption of a minor child by the same-sex partner of one of the child’s parents. Here also, it is unnecessary to create an additional ‘legal parent’ where both the child’s opposite-sex parents are present. The aim is in no sense to discriminate against the same-sex partnership of the child’s mother; however, where both the opposite-sex parents are present, there is simply no need for a provision enabling one of the parents to be replaced by the same-sex partner of the other.
The adoption of a minor child is fundamentally designed to create a relationship akin to that which exists between biological parents and their children. The file in the present case shows that the biological father has regular contact with his child, with the result that the child maintains a meaningful relationship with both his opposite-sex parents. In these circumstances, however, there is no need to replace either of the biological parents with the same-sex partner of the other parent by authorising the child’s adoption.
The case-law concerning contact rights for parents also generally and indisputably recognises that, according to the available psychological and sociological findings, it is of particular importance for the child’s subsequent development that adequate personal contact be maintained with the parent with whom he or she is not living (see, inter alia, EFSlg 100.205). Accordingly, the legislation goes so far as to confer a right on the child to have personal contact with the parent not living in the same household (see, inter alia, OGH, 3 Ob 254/03 z). It is likewise beyond dispute that, for a minor child to thrive, it is highly desirable that he or she should have a personal relationship with both – opposite-sex – parents, in other words, with both a female (mother) and a male (father) caregiver, and that efforts should be made to that end (compare, inter alia, EFSlg 89.668). At least a minimum degree of personal contact between the child and both parents is therefore greatly to be desired and is generally made a requirement in the interests of the child’s healthy development (compare OGH, 7 Ob 234/99 h). These considerations also clearly militate against authorising the adoption of a child by the same-sex partner of one of the parents if that has the effect of severing the family-law relationship with the other parent.
As stated above, this legal position in no sense amounts to discrimination against people in same-sex partnerships. On this point the first-instance court, in the reasoning of the impugned decision, correctly pointed to the settled case-law of the European Court of Human Rights, according to which sexual orientation falls within the scope of protection of private and family life (Article 8 of the Convention), with the result that discrimination on the basis of sexual orientation is fundamentally incompatible with Articles 8 and 14 of the Convention. However, the first-instance court also correctly pointed out that national legal systems must be afforded a margin of appreciation in enacting legislation, a margin which is correspondingly broader where there is no clear consensus between member States’ legal systems in the sphere in question. While noting that the margin of appreciation must not be interpreted as giving States carte blanche to make arbitrary decisions, the first-instance court observed that it must be construed very generously in the sphere of the right of homosexuals to adopt, as these were issues which were subject to societal change. In the context of this assessment, the Austrian legal system made no provision for the adoption of a child by the same-sex partner of one of the parents.
The appellants have adduced no convincing arguments to indicate that the provisions in force amount to discrimination against same-sex partners. Even in the case of heterosexual couples, the only legal relationship that may be severed when a partner’s child is adopted is the relationship between the child and the parent of the same sex as the adoptive parent. In such cases the child therefore continues to have two opposite-sex parents and caregivers. This state of affairs, which is important for the child’s development, does not however apply in the event of his or her adoption by the same-sex partner of one of the parents; there is therefore no evidence of an unjustified difference in treatment in this regard. Furthermore, in the judgment of the European Court of Human Rights cited by the appellants (see Karner v. Austria, [cited above]), the Court reiterated that a difference in treatment of people living in a same-sex relationship was to be considered discriminatory only if it had no objective and reasonable justification, that is if it did not pursue a legitimate aim, or if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Court would thus regard a difference in treatment as compatible with the Convention only where very weighty reasons had been put forward. Particularly compelling reasons therefore had to be advanced to justify any difference in treatment based on sexual orientation. However, the Court also explicitly acknowledged in this regard that protection of the ‘traditional family’ was, in principle, a weighty and legitimate reason which might justify a difference in treatment by the national legislature. At the same time, it found that the aim of protecting the family in the traditional sense was rather abstract and that a broad variety of concrete measures could be used to implement it. Compelling reasons had to be given for excluding people living in homosexual relationships from the scope of application of certain legal provisions. In the case in question, which concerned the right of a deceased person’s same-sex partner to succeed to a tenancy, the Court found that no such reasons had been given.
Nevertheless, the judgment in question does not lend any support to the appellants’ arguments in the present case. On the basis of the right – recognised by the Court – to include measures in the national legal system to protect the ‘traditional family’, the stance taken in the Austrian legal system whereby, as a matter of principle and in accordance with biological reality, a minor child should have an opposite-sex couple as parents, has to be respected. Hence, in the view of this court, the decision by the legislature not to provide for a child to be adopted by the same-sex partner of one of the parents, with the result that the relationship with the opposite-sex parent is severed, unquestionably pursues a ‘legitimate aim’. Likewise, it cannot be said that ‘no reasonable relationship of proportionality’ exists between this aim and the means employed. This legal situation is not based – contrary to the appellants’ assertions – on ‘the prejudice of the heterosexual majority towards the homosexual minority’, but is merely designed to ensure that minor children have regular contact with both a female and a male parent while they are growing up. This aim must be respected in just the same way as the decision of the child’s mother to live in a same-sex partnership. Thus, there is no apparent justification for depriving the child of his family-law relationship with his parent of the other sex. However, that is precisely what the child’s mother and her partner sought in the present case and have continued to seek since the lodging of the appeal.
Accordingly, in view of these overall considerations, the present appeal should be dismissed.
The ruling on the admissibility of an appeal on points of law is based on sections 59(1)(2) and 62(1) of the Non-contentious Proceedings Act. While it is true that the Supreme Court already issued one decision in the instant case, that decision concerned the lawfulness of the (partial) transfer of custody of the child to the mother’s same-sex partner. As regards the issue now to be determined, however, namely whether the adoption of a child by the same-sex partner of one of the parents is lawful, no specific and express Supreme Court rulings exist on the subject to date, to the best of this court’s knowledge. For that reason the present decision is of considerable importance in terms of the unity of the law, legal certainty and development of the law.”
19.  The applicants lodged an appeal on points of law with the Supreme Court. They submitted that Article 182 § 2 of the Civil Code as applied by the courts led to a difference in treatment between different-sex and same-sex couples in cases where one partner wished to adopt the other partner’s biological child. While heterosexual couples (including unmarried ones) could establish an additional parent-child relationship between the child and its parent’s partner, this was impossible for same-sex couples, as the same-sex partner would replace the biological parent. Thus, any meaningful kind of second-parent adoption was excluded. The Regional Court had sought to justify this difference in treatment by referring to the aims of protecting the family in the traditional sense and allowing the child to grow up with both a male and a female caregiver. However, the Regional Court had not shown that the exclusion of same-sex families from second-parent adoption was necessary to achieve that aim. Recent studies showed that same-sex couples were just as capable of raising children as different-sex couples. Moreover, the present case did not concern the question whether the second applicant should or should not grow up in a same-sex family. He was already part of a de facto same-sex family. The question therefore was whether it was justified to deny legal recognition to the relationship between him and the first applicant. It had not been shown to be necessary to distinguish between unmarried heterosexual and same-sex couples. Finally, the applicants maintained that in many European States second-parent adoption was reserved to married couples. They asserted that where a State chose, as Austria had, to allow second-parent adoption in unmarried couples, it was not free to make a distinction on the basis of sexual orientation.
20.  On 27 September 2006 the Supreme Court dismissed the appeal on points of law lodged by the applicants. It held as follows:
“[The minor] is the biological child of the third applicant, Ms ..., and of Mr ..., born on ... The child’s mother has sole custody. She shares a home in ... with her partner (the first applicant) and with [the child]. The applicants applied for court approval of an adoption agreement entered into on 17 February 2005 by the first applicant and the minor child, represented by his mother, under the terms of which the first applicant agreed to adopt the child. However, the agreement provided for the first applicant to take the place not of the child’s mother but of his biological father. The applicants sought court approval of the adoption such that the relationship with the biological father and his relatives under family law would cease to exist while the relationship with the child’s biological mother would remain fully intact. They requested the courts to override the refusal of consent by the child’s father.
The first-instance court refused the application, taking the view that Article 182 of the Civil Code reflected the legislature’s clear intention that, in the case of adoption by one person, the legal relationship with the parent of the same sex as the adoptive parent should cease to exist and the relationship with the opposite-sex parent should be preserved. Only in this scenario, according to the first-instance court, did the law allow the courts to also declare the latter relationship, which was not affected by the adoption per se, to have been severed. In the view of the first-instance court, the arrangement sought by the applicants, whereby [the child] would be adopted by a woman and the legal relationship with his biological father but not with his biological mother would cease, was incompatible with the law. This interpretation was in conformity with the Constitution and in particular with Articles 8 and 14 of the European Convention on Human Rights. According to the case-law of the European Court of Human Rights, member States had a particularly wide margin of appreciation in the sphere of adoption by homosexuals, as these issues were subject to societal change and were in a state of transition. The question whether a member State provided the possibility for two persons of the same sex to create a legal relationship with a child on an equal footing was therefore a matter for the State itself to decide, subject to the limits laid down in Article 8 § 2 of the Convention. The arrangement sought by the applicants was not possible under Austrian law.
The appellate court upheld the decision of the first-instance court, taking the view that the law was clearly based on the premise that the term ‘parents’ necessarily referred to two persons of opposite sex. This was reflected in the law on custody, which as a matter of principle gave priority to the biological parents over other persons. The same considerations applied in the sphere of adoption law. Here too the legislative provisions were based, in line with the biological reality, on the presence of a couple made up of parents of opposite gender. Where both the opposite-sex parents were present, there was no need for a provision enabling one of the parents to be replaced by the same-sex partner of the other; this did not reflect any wish to discriminate against same-sex partners. In the sphere of contact rights it was also recognised beyond dispute that, for a minor child to thrive, it was highly desirable that he or she should have a personal relationship with both – opposite-sex – parents, in other words with both a female (mother) and a male (father) caregiver. At least a minimum degree of personal contact between the child and both (biological) parents was to be desired and was generally made a requirement in the interests of the child’s healthy development. These considerations too could be applied in relation to adoption. The appellate court also endorsed the first-instance court’s view that there was no discrimination against same-sex partners from the standpoint of the case-law of the European Court of Human Rights. A difference in the treatment of persons living in a same-sex relationship was to be regarded as discriminatory only if it had no objective and reasonable justification, in other words, if the rule in question did not pursue a legitimate aim or if there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised. Differences in treatment were found to be compatible with the Convention where weighty reasons had been put forward. The Austrian legislature pursued one such legitimate aim in seeking to ensure that children, as they were growing up, had the regular contact with both a male and a female parent which their development required. That aim was to be accorded the same respect as the mother’s decision to live in a same-sex partnership. There was no justification, however, for depriving a child of the relationship under family law with his or her parent of the other sex.
The appellate court ruled that leave to appeal on points of law should be granted since no case-law existed on the issue of the lawfulness of the adoption of a child by the same-sex partner of one of his or her biological parents.
The applicants’ appeal on points of law is admissible for the reasons given by the appellate court. It is nevertheless unfounded.
Article 179 § 2 of the Civil Code provides that the adoption of a child by more than one person is permissible only where the adoptive parents are a married couple. Legal commentators have concluded from this that adoption by more than one person of the same sex (whether simultaneously or consecutively) is prohibited (see Schwimann in Schwimann, Civil Code § 179, point 6, and Hopf in Koziol/Bydlinksi/Bollenberger, § 179, point 2, both cited by the Vienna Regional Civil Court, 27 August 2001 – EFSlg 96.699).
The second sentence of Article 182 § 2 of the Civil Code governs the effects produced in the event of adoption by one adoptive parent. If the child is adopted only by an adoptive father (an adoptive mother), the ties of kinship cease only in respect of the biological father (the biological mother) and his (her) relatives. It is quite clear from the materials (ErlBem RV 107 BlgNR IX. GP, 21) that this provision should be construed to mean that the non-proprietary legal ties are severed only with the biological parent who is being replaced by an adoptive parent of the same gender. In explicit terms, this means that the child cannot, for instance, be deprived of his or her biological father if he or she is being adopted just by a woman (see also: Schwimann in Schwimann, op. cit., § 182, sub-paragraph 3; Stabentheiner in Rummel I § 182, sub-paragraph 2).
Contrary to the applicants’ assertion, this provision is not to be construed extensively in the way that they argue, nor does there exist an unintended legislative gap which therefore needs to be filled by analogy. According to the materials (op. cit., 11), the chief aim of adoption is to promote the well-being of the minor child (the protective principle). Adoption should constitute an appropriate means of entrusting to suitable and responsible individuals the care and upbringing of children who have no parents, those who come from broken homes or those whose parents, for whatever reason, are unable to provide their children with a proper upbringing or may not even want their children. However, this aim can be achieved only when the adoption allows the situation in a biological family to be recreated as far as possible.
The case-law (6 Ob 179/05z) also makes clear that the tie between the child and the adoptive parent is to be understood as a social and psychological relationship, akin to that between biological parents and their children. The model for the child-parent relationship in the context of adoption of minors is informed by the specific social and psychological ties that exist between parents and young people approaching adulthood. In addition to the socially typical ties of physical and personal proximity (shared household, care for the child’s physical and psychological needs by its parents), these encompass emotional ties comparable to the love between parents and their children, and a specific role for the parents as mentors and role models.
Article 182 § 2 of the Civil Code imposes a general prohibition (that is, not just in the case of same-sex partners) on adoption by a man as long as the ties of kinship with the child’s biological father still exist, and by a woman where such ties still exist with the biological mother. Under Article 182 § 2, therefore, a person who adopts a child on his or her own does not take the place of either parent at will, but only the place of the parent of the same sex. The adoption of the child by the female partner of the biological mother is therefore not legally possible.
Contrary to the applicants’ view, this provision also survives the test of compatibility with the Constitution (fundamental rights perspective). In the case of Fretté [cited above], the European Court of Human Rights was called upon to examine whether the authorities’ refusal to authorise the adoption of a child by a homosexual man amounted to discrimination. In its judgment of 26 February 2002, the Court found that adoption meant ‘providing a child with a family, not a family with a child’. According to the Court, it was the State’s task to ensure that the persons chosen to adopt were those who could offer the child the most suitable home in every respect. Not least in view of the wide differences in national and international opinion concerning the possible consequences of a child being adopted by one or more homosexual parents, and bearing in mind the fact that there were not enough children to adopt to satisfy demand, States had to be allowed a broad margin of appreciation in this sphere. A refusal to authorise adoption by a homosexual would not be in breach of Article 14 of the Convention read in conjunction with Article 8 if it pursued a legitimate aim, namely the protection of the child’s best interests, and did not infringe the principle of proportionality between the means employed and the aim sought to be achieved.
The applicants have not demonstrated, nor is there any other evidence to suggest, that the provisions of Article 182 § 2 of the Austrian Civil Code overstep the margin of appreciation accorded by the European Court, or that they infringe the proportionality principle. The Supreme Court is therefore in no doubt as to the compatibility of this provision with the Constitution, which is called into question by the applicants.
In view of the legal impossibility of the adoption it is also not necessary to further examine whether the conditions for overriding the father’s refusal to consent, as an exceptional measure under Article 181 § 3 of the Civil Code, have been met.”
The judgment was served on the applicants’ counsel on 24 October 2006.